Social media and the 1st Amendment (Formerly: Trump seeks to punish Twitter) (1 Viewer)

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superchuck500

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Despite Twitter historically granting Trump far more latitude with violations of Twitter terms of service than average members would get, a recent tagging of a Trump tweet with Twitter's fact-checking tool enraged the president. He announced yesterday that he will take retribution via executive order seeking to remove statutory legal protections in place for social media companies, and instructing his executive agencies (the FCC an DOJ) to formulate plans to take legal action against social media companies for "political bias."

A draft of the order has been released . . . and it is troubling to say the least.

According to analysis, the order will "reinterpret" a key provision of the Communications Decency Act (Sec. 230) that previously protected social media companies for responsibility for the content on their sites. That section works by declaring that social media companies are not "publishers" of the content posted by third-party account holders (members) - and it is statutory. The Trump order apparently also instructs the FCC to create regulations to make this new "interpretation" of Sec. 230 actionable against social media companies. In addition, the order apparently instructs the FTC (which is not an executive agency) to report to Congress on "political bias" in social media - and to consider using the reinterpreted Section 230 to bring actions against social media companies for political bias.

Apparently the order also instructs DOJ to work with state AGs to determine what state laws may be used against social media companies for political bias.

So yep, a Republican president is attempting to restructure the statutory framework that has allowed American social media companies - which are private business by the way - to grow into corporate giants without having to be answerable in court for the content posted by their members. And will do so based on the notion that private business should be held to some standard of political neutrality.

Further legal analysis will be needed, but it seems highly suspect on several important grounds (including the fact that Section 230 is statutory and is very explicit - it's not subject to rewrite by executive order). More importantly this idea that "political bias" can be defined and made actionable by federal agencies against private companies seems a patent violation of the First Amendment.


 
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JimEverett

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It's a good point (and one that I was neglecting last night in my post) that there has been criticism of Section 230 from Democrats as well. I think that I'm just not sure that Section 230 is the best tool to address any of those complaints. To be sure, Section 230 was never intended to be a bargain (i.e. "if Internet Company wants civil liability immunity, Internet Company cannot regulate content of a political nature"). That's just not in the history nor the text, in fact, it's quite the opposite (as we both acknowledge). I think it's particularly persuasive that Section 230 puts the onus on the internet company to define, for itself, what is objectionable content - demonstrating that Congress never intended to require some objective or neutral standard.

I'm still not sure that there's a problem. These are commercial sites, with shareholders - and that means that the company's primary operating objective is financial performance. And because none of the content in question in any of these episodes was created by the social media companies (it is always third-party content), that means that it is available from other sources, just a click or search away. Content regulation on Twitter or Facebook isn't censorship, it doesn't make the content go away, it only limits the ease of dissemination that those platforms provide. And that's really what the complaint is: your platform has succeeded so strongly that it has become the most efficient and powerful tool of disseminating information, and when you (Twitter or Facebook) limit access to some content, that content doesn't get the benefit of that dissemination tool. But where does the idea come from that these commercial enterprises have a duty to provide that access?

When half of my Facebook feed threw a fit over Facebook's 'censoring' of that ridiculous America's Frontline Doctors video, many said that they would simply leave Facebook. Well that certainly seems like a good measure to me - if Facebook's content regulation activities drive enough users away, Facebook's financial performance will suffer.

Similarly, as Conor Friedersdorf (Atlantic conservative columnist) pointed out, Twitter's determination regarding the NY Post Hunter Biden story would have kept the Pentagon Papers story off of Twitter. But is this really a problem? The Pentagon Papers story was available exclusively from the New York Times and then from both the Times and the Washington Post; the American public didn't need Twitter for the Pentagon Papers story to be read and talked about everywhere.

But all of that said, if these companies have become "too big and powerful", then we have anti-trust laws for that. At the same time, Section 230 was the result of a determination by Congress that legislation was needed - and Congress can certainly revisit that policy determination. I don't think it would be unconstitutional for Congress to remove Section 230's protections, Congress was the one that provided them in the first place. But I think they should be very careful about how they do it.
I think there is a perception problem in that you are shielding companies like Twitter and Facebook from liability on the basis, at least in part, that they are not actually publishers of content - while they are making publishing decisions.
I think these platforms are a net positive for the exchange of ideas and information. The platforms carry a lot crap, but they are ultimately "good" for free and open societies, imo. But that is to the extent they really do allow free exchange with narrowly defined exceptions. In one sense Twitter and others are doing a good job given that they are being attacked from all sides. From another perspective, though, that seems problematic - and at least with the opinion of Trup and Biden on the issue, the future of the platforms does not look great and I think that goes, in part, with their hand being involved in too much editorial control.

Ultimately though, as I wrote in an earlier post, a more explicit recognition of the status quo looks like the only real solution - apart from just appeals to exercise less content control.
 

SaintForLife

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If I’m not mistaken, there were no images of the tax returns posted. Twitter is objecting to publishing email addresses and other private information contained in the NY Post story.
Was that Twitter's third justification so far? I'm losing count. It sounds like CYA to me.

The Trump tax returns still violate their policy, but it's obvious that they selectively enforce it. The Trump tax returns were obtained without authorization.

 
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superchuck500

superchuck500

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Was that Twitter's third justification so far? I'm losing count. It sounds like CYA to me.

The Trump tax returns still violate their policy, but it's obvious that they selectively enforce it. The Trump tax returns were obtained without authorization.

It's a good reference - but is it accurate that it's selective enforcement? I don't think the NYT piece on Trump's tax information had any actual documents embedded in it.

To be fair, it seems like a distinction without much meaning - so reciting what a hacked/unauthorized document says is okay but embedding an image of that document isn't? Nonetheless, if that's their policy, I think the two examples might actually be different.
 

SaintForLife

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My understanding is that Facebook and Twitter aren't blocking the information from being shared on the basis that it is not newsworthy. I do think that a picture of Hunter Biden smoking crack (or meth or whatever is in his pipe) is newsworthy. I think he is a public figure, even if involuntarily.

But the basis the sites have used for blocking the information is that the pictures, etc. are "hacked materials" and their rules prohibit the sharing of hacked materials. I won't rehash the circumstances of how Giuliani came into possession of all of this stuff (I did in another thread), but it doesn't take Sherlock Holmes to figure out that the materials forming the basis of the NY Post story were obtained through hacking. They are trying to discourage people from illegally hacking other people and then posting the hacked information online. That is not in and of itself a political stance--you may recall a number of years ago when a website popped up with nude pictures of celebrity women that had been hacked from the Apple cloud, and Facebook and Twitter would be very reasonable in preventing their platform from being used to spread that information. But after the 2016 hacking scandals it obviously may be used in political circumstances. The issue keeps coming up in the context of Trump's campaigns specifically because Trump's campaigns have now in both elections have sought, obtained, and distributed hacked information.

It leads to interesting questions. I don't think Facebook and Twitter not wanting to spread hacked information is unreasonable. But since the information has already been reported by an outlet--albeit a New York tabloid which has relied on stories from Trump and Giuliana for decades--is the censorship of the NY Post story really about the sharing of hacked information or is it censorship of the press? I'm not saying that the NY Post has a First Amendment right to have its stories discussed in social media, but I completely understand why we should be wary of these social media sites doing this. Is it reasonable for these cites to conclude that the information was hacked to begin with when the NY Post is reporting that Giuliani obtained the stuff through bizarre and questionable means that may not technically be "hacking" is his story is accepted at face value? Should these cites be evaluating the credibility of people like Giuliani? I don't know what the "right" answers to any of these questions raised by this are.
I might have missed it, but what evidence shows it was hacked?

The original article did show that the FBI did subpoena the laptop and the computer shop owner. Why would they do that if the whole story was supposedly made up by Giuliani?
Subpoena-GrandJury-redacted.jpg

Subpoena-GrandJury-computerequipment.jpg
 

MT15

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SFL, there is almost no chance that the Trump tax returns were hacked, and that’s their immediate standard.

They haven’t posted any images of the Trump tax returns, either, and they say right there in what you posted that discussion of unauthorized material isn’t a problem.

So where is the inconsistency?
 

MT15

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I might have missed it, but what evidence shows it was hacked?

The original article did show that the FBI did subpoena the laptop and the computer shop owner. Why would they do that if the whole story was supposedly made up by Giuliani?
View attachment 2576
View attachment 2577
Dude, what does this prove? Do you know the serial number of Hunter Biden’s laptop? The subject of this subpoena is redacted, for crying out loud. If you think this proves something, I’ve got a bridge you might be interested in, lol.
 

SaintForLife

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It's a good reference - but is it accurate that it's selective enforcement? I don't think the NYT piece on Trump's tax information had any actual documents embedded in it.

To be fair, it seems like a distinction without much meaning - so reciting what a hacked/unauthorized document says is okay but embedding an image of that document isn't? Nonetheless, if that's their policy, I think the two examples might actually be different.
The Trump tax returns were Illegally leaked and obtained without authorization right? That goes against their policy.

I posted this earlier, but this tweet shows how ridiculous their policy is:
 
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superchuck500

superchuck500

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SFL, there is almost no chance that the Trump tax returns were hacked, and that’s their immediate standard.

They haven’t posted any images of the Trump tax returns, either, and they say right there in what you posted that discussion of unauthorized material isn’t a problem.

So where is the inconsistency?
The qualification stated in the Twitter response is content "obtained without authorization" - I think we can presume the NYT obtained the Trump tax information without authorization.
 

SaintForLife

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SFL, there is almost no chance that the Trump tax returns were hacked, and that’s their immediate standard.

They haven’t posted any images of the Trump tax returns, either, and they say right there in what you posted that discussion of unauthorized material isn’t a problem.

So where is the inconsistency?
The Trump tax returns were Illegally leaked and obtained without authorization. That's against their policy.
 

MT15

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The qualification stated in the Twitter response is content "obtained without authorization" - I think we can presume the NYT obtained the Trump tax information without authorization.
Sure, but they also say discussion of any material is okay. I haven’t seen any images of the actual tax returns, so it is only discussion.
 
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superchuck500

superchuck500

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The Trump tax returns were Illegally leaked and obtained without authorization right? That goes against their policy.

I posted this earlier, but this tweet shows how ridiculous their policy is:
I'm not disagreeing with you about their policy, but in the explanation you posted above, Twitter explained that content that "covers" material obtained without authorization is not a violation of their policy. It only relates to content that includes or links to the improperly obtained materials, themselves.

So it's not as broad as you are contenting . . . and the NYT Trump tax piece only wrote about the material and its contents, it did not actually embed/include/link-to the materials themselves.
 

MT15

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So, SFL, you can take issue with their policy but they are NOT being selective in enforcing it as you said.
 

SaulGoodmanEsq

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Is there some federal law regulating how Twitter and Facebook govern their platforms? In the absence of such I'm not sure why a libertarian would be concerned with how a private company regulated itself. Is this any different than the standards (or lack-thereof) we see from the New York Post or OAN? It's the marketplace of ideas, right?
 

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